HKSAR v. Ko Wing Hung and Another

DCCC 570/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 570 OF 2013

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REASONS FOR SENTENCE

1.D1 pleads guilty to one charge of trafficking in 13.75 grammes of a solid containing 10.68 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1); and one charge of possession of 0.47 gramme of a solid containing 0.38 gramme of ketamine, contrary to section 8 of the Dangerous Drugs Ordinance (charge 3).

2.D2 pleads guilty to one charge of trafficking in 2.88 grammes of a solid containing 2.43 grammes of ketamine; 7.51 grammes of a solid containing 5.34 grammes of cocaine and 3.95 grammes of a crystalline solid containing 3.82 grammes of methamphetamine hydrochloride (‘ice’), contrary to section 4 of the Dangerous Drugs Ordinance (charge 2).

3.In summary on the 14 March this year the police conducted an anti-narcotics operation in Shek Lei Estate, Kwai Chung.  At about 20.15 hours D2 was intercepted by the police when leaving his residence at Room 715, 7/F, Shek Fook House.  The police then executed a search warrant at Room 715.

4.D1 was inside the premises.  The police searched her handbag and found the ketamine particularised in charge 1.  D1 was then taken to her residence at Room 1508 on the 15/F of Shek Fook House where the police found the ketamine particularised in charge 3. 

5.In a drawer of a coffee table inside Room 715 the police found the ketamine, ice, and cocaine particularised in charge 2 together with one electronic scale and two piles of plastic bags.  Under caution D2 said, inter alia, that he was a drug addict; that he consumed ketamine in the flat and that he intended to repackage the drugs for sale at the park near Shek Lei Estate.

Trafficking in dangerous drugs

6.In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 1 and 10 grammes sentence after trial falls within the range of 2-4 years imprisonment and where the narcotic content is between 10 and 50 grammes within the range of 4-6 years imprisonment. 

7.The courts have equated for sentencing purposes cocaine with heroin (seeAttorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).    InR v Lau Tak Ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment. 

8.In Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 the Court of Appeal laid down guidelines for trafficking in ice.  Where the quantity of narcotic is up to 12 grammes sentence upon conviction after trial is between 3 and 7 years imprisonment.  In HKSAR v Capitania Edwin F. CACC 28/2004 the Court of Appeal accepted that the reference to 12 grammes was a typographical mistake and should read 10 grammes.

D1

9.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Ho and the letter from her parents, including the defendant is a drug addict and that she has no previous convictions for trafficking in drugs. Although a drug addict I am told all the drugs subject of charge 1 were for trafficking and none were for the defendant’s own consumption.

10.I am satisfied the proper starting point after trial for 10.68 grammes of ketamine is 4 years imprisonment.  Giving the defendant full credit for her plea of guilty reduces the sentence to 2 years and 8 months imprisonment.

Possession of ketamine

11.In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.  

12.Had this charge stood alone the defendant would have appeared in the magistracy.  Taking into account the small quantity of ketamine I am satisfied a starting point of 6 months imprisonment is appropriate.  Giving the defendant full credit for her plea of guilty reduces the sentence to 4 months imprisonment.

Totality

13.The possession of a small quantity of ketamine for the defendant’s own consumption, albeit on the same day and on a different floor of the same building, is separate and distinct from the trafficking charge and therefore a consecutive sentence is appropriate.  Taking into account totality of sentence to be served I order 2 months consecutive and 2 months concurrent to the sentence for trafficking making a total sentence to be served by the defendant of 2 years and 10 months imprisonment, which I am satisfied properly reflects the defendant’s criminality on the two charges.

14.D1 is convicted and sentenced on charge 1 to 2 years and 8 months imprisonment and on charge 3 to 4 months imprisonment with 2 months consecutive and 2 months concurrent to charge 1.

D2

15.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Fung and the letter from the defendant, including the relative young age of the defendant; that the defendant is also a drug addict and has no previous convictions for trafficking in drugs.

16.The trafficking charge concerns three different drugs, ketamine, cocaine and ice. Adopting the ‘individual’ approach the starting point for trafficking in the ketamine would be 2 years and 6 months; the cocaine would be 3 years and 6 months and the ice would be 4 years.  This would result in a starting point of 10 years imprisonment, which clearly is excessive for if all the drugs were ice the likely starting point based on quantity alone would be no more than 7 years and 3 months imprisonment. 

17.The ‘combined’ approach to sentence is therefore appropriate.  Whilst the most potent drug is ice sentence must reflect that the largest quantity is cocaine and that there were three different drugs.  In all the circumstances I am satisfied a starting point of 6 years and 6 months imprisonment is appropriate. 

Own use

18.The defendant says that the ketamine was for his own consumption.  Taking into account the defendant has served DATC in the recent past and that he admitted at an early stage his consumption of ketamine, I am prepared to accept the ketamine may have been for his own consumption.

19.In deciding how much weight should be attached to the fact some of the drugs were for the defendant’s own use I have considered the decision in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561.

20.Taking into account the quantity of ketamine; the packaging; the drugs were found in the defendant’s residence; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 6 months to one of 6 years imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 yearsimprisonment.

Please refer to CACC350/2013 for the relevant appeal(s) to the Court of Appeal.